BarTalk | June 1997

Newsletter of the Canadian Bar Association (BCBranch) June 1997 Vol. 9 • No.3

INSIDE President's Message ...... 2 Section Talk .................. 3 Chief Justice Allan McEachern speaks on Tradition & Reform in the Court of Appeal ............. 7 Arbitrators needed for proposed trial overflow program ......................... 13 How we can look after ourselves and our colleagues ................ 14- 15 New Provincial Court rules ................................ 16 Fighting money-laundering in the Pacific Rim ......... 22 How to share partner profits ............................ 2 3 Letters to the Editor 2 6 Legislative Update .... 2 9

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Mortgage Title Insurance program continues to grow CBA and Law Society of SC work together on joint concerns

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he legal profession is responding on could affect more than a third of the Bar's two fronts amid reports that more membership in the province. financial institutions involved in Pinning down how many lawyers have been residential mortgage transactions have affected by title insurance to date is difficult. No signed up for a title insurance program one as yet has hard numb~rs on how many introduced last year in British Columbia. lawyers have lost or are losing business as a The arrival of title insurance in British result of title insurance. But at the rate institutions Columbia-the program uses new technology seem to be signing up, it seems inevitable things will only get tougher unless and techniques in the area of real estate law-triggered the profession meets the SPECIAL REPORT concern within the legal competition head-on.

Branch Member Survey profession because it Spurred by the prospect of increased erosion of its effectively cuts lawyers out See Pages 17-20 h·aditional market share in real of the real estate loop. estate business, the profession The increased acceptance of title insurance indicates competition in the has moved to examine the issue of technological field of residential mortgages is only going to get change and is also seeking changes in legislation stiffer. in order to protect the interests of borrowers or In 1996, First American Title Insurance consumers.

The first initiative involves a review process Company signed up Canada Trust and since then, says, Gordon Alteman, First American's involving a $40,000 study and the use of a Pacific Region Director; the company has added consultant to do a feasibility evaluation of Mutual Trust (the residential mortgage division conveyancing technology. The review is a joint of The Mutual Group), Surrey Metro Savings initiative of the CBA' s Real Property Section and credit union and Household Realty. the Law Society of BC' s Title Insurance Committee. A tender call closed May 23 and it's Alteman declined to discuss specifics but did confirm that discussions are continuing with expected that a consultant will be hired and other financial institutions . Other sources work underway shortly after. indicated that one and possibly two banks are In tandem with the technology study, the also being wooed.

CBA and LSBC committees are also working on With the value of lawyers' fees in residential revisions to the Practice Checklists Manual with real estate practice running to about $75 million a view to both developments in the law and cost ammally and statistics showing that more than efficiency, standard undertakings, standard 2500 members in BC do residential real estate (minimal) notes to adjustments, standard work, the competition posed by the arrival of First American in this important practice area Continued on page I 2

, PRESIDENT'S MESSAGE

Member survey indicates that most of you are satisfied But more of you still need to be included in Branch activities

EMILY RE I D , Q .C., CBA (BC Branch) Pres ident 1996/97

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t the risk of being overtaken by events that none of us can anticipate, this column will NOT be about "No Fault"auto insurance. Although this has been an important fight for the Bar-and although it is still unresolved as we go to pressthere are a great many other matters that should be of concern to us. And one of the most important of these is the future of your professional association.

Early this year, in January and February, the firm of Campbell, Goodell Traynor Consultants Ltd. conducted a phone poll of 600 of our members to determine how well you believe we're doing our job. I would like, by the way, to thank all of you who participated in this survey and took the time to respond to the many questions. Your input was critical. It will be invaluable forme and your executive in planning for the future. You'll see more details about this survey on pages 17-20 of this BarTalk.

As for the results of the survey, I am very pleased that most of you are, on the whole, pleased with the benefits and services provided by your Branch. I was deeply gratified to discover such a high level of satisfaction.

Otherwise, the survey very clearly indicated what you liked and do not like about the services delivered by the Branch. In general, you like the Directory, BarTalk, Bar Fax and Section Activities.

You're notve1y enthusiastic--or you don't know a great deal-about Midwinter Meetings, Diala-Law and Law Week.

I think the distinction between what you say you like and your know ledge ofBranch services and events is an important one-and one that we must address. For example, I happen to believe that our Practice Advisory Panels program is one of the Branch's most valuable services. These panels include lawyers from a variety of specialities who have volunteered to provide help to fellow members free of charge.

On one occasion, when faced with a media interview, I myself took advantage of this service and was greatly assisted by Kim Floeck of the

Wills & Estates Practice Advisory Panel. This service costs the Branch very little to administer and provides you with a great source of expert help, when you need it.

Unfortunately, according to the survey, a whopping 54 per cent of you knew very little or nothing about this service. I can't help but believe that, if more of you knew about these panels, more of you would take advantage of them.

Similarly, 35 per cent of you indicated that you knew little or nothing about our Legislation and Law Reform program. Yet I know, from many members who've spoken to me, that Ann McLean's Legislative Update is one of Bm¡Talk's most valued features-and that feature is part of our Legislation and Law Reform program.

So we've discovered that we must not only provide excellent services but we must also adequately promote and identify them, if you are to value them or even simply take advantage of them. We shall do so.

We shall also continue in our efforts to involve more of you in Branch activities. Since becoming president, one of my very special ambitions has been to "open up" the Branch to a greater number and variety of people. To this end, earlier this year we sent out two special issues of BarFax asking for volunteers to serve on committees associated with the Branch and National CBA or with outside organizations related to the justice system.

I am very pleased to report that your response was positive and enthusiastic. To our call for volunteers to serve on Branch committees and other local justice organizations, we received 80 replies, complete with curricula vitae. And 53 of you volunteered to serve on National CBA committees. Best of all, CBA Executive Assistant Barb Murphy reported that nearly all of those who replied were unknown to her. Fresh blood and welcome! Our Branch stands the best chance of a healthy future by drawing on the widest possible pool of our membership.

I wish all of you the best of luck in the nomination process.

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BarTalk Vol. 9 No. 3

The Twelve Deadly Sins or....

Speeding your desk order divorce through the process

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Shelley Bentley

he Honourable Mr. Justice Preston and the Honourable Madam Justice Allan recently addressed the New Westminster Family Section about how to avoid having your client's desk order divorce race through the Divorce Registry at a snail's pace.

What follows is the Honourable Judges' list of the twelve deadly desk order divorce sins; 1. Orders Awarding Sole Custody but Joint Guardianship

Judges are divided on the issue of whether to refuse to split custody and guardianship on the basis of the principles set out in Anson v. Anson (1987), 10 B.C.L.R. (2d) 357 (S.C.) or to permit such a split either on principled grounds or on the basis that its "feel good" effects upon the non-custodial parent justify any legal dichotomy.

Counsel understandably recognise the psychological value of the label "joint guardianship" in reassuring the spouse who may see himself or herself as "losing" custody that he or she can play a real participatory role in the ongoing development of the children.

Presumably, this enhances counsel's ability to resolve a certain number of custody disputes in a relatively amicable fashion. However, in a social climate in which orders are increasingly the subject of enforcement by police officers, precision respecting the rights conferred by an order is often critical.

Master Joyce has developed a model form of order for joint guardianship when one party is granted sole custody. No single form of order will be appropriate in all circumstances.

However, if this definition accords with the parties' wishes, its incorporation in the desk order will avoid rejection because custody and guardianship are split. Master Joyce's model order reads: "the parties shall share joint guardianship of the child. Joint guardianship shall for the purposes of this order be defined as follows: June 1997

(1) the parents are to be joint guardians of the estate of the child; (2) in the event of the death of either parent, the remaining parent will be the sole guardian of the person of the child; (3) the custodial parent, who has the primary responsibility for the day-to-day care of the child, will have the obligation to advise the other parent of any matters of a significant nature affecting the child; (4) the custodial parent will have the obligation to discuss with the other parent any significant decisions which have to be made concerning the child, including significant decisions concerning the health (except emergency decisions), education, religious instruction and general welfare of the child; (5) the parent who does not have custody will have the obligation to discuss the foregoing issues with the custodial parent and each parent shall have the obligation to try to reach agreement on those major decisions; (6) in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts the custodial parent shall have the right to make such decision; (7) the non-custodial parent shall have the right, under s.32 of the Family Relations Act, to seek a review of any decision which that parent considers contrary to the best interests of the child; (8) each parent will have the right to obtain information concerning the child directly from third parties, including teachers, counsellors, medical professionals and third party care-givers.

2. Discrepancy Between the Relief Sought in the Petition and the Order

The relief claimed in the Petition must be disposed of somehow. It can be granted, withdrawn, settled dismissed or adjourned. There are three ways of Continued over

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SECTION TALK

The Twelve Deadly Sins Continued from page 3

cross/sections Section activity for the 1996-97 year concludes at the end of June. To date.

61 Branch Sections have held 335 meetings and produced 214 sets of minutes. Approximately 3,600 members have enrolled to receive notices only or notices and minutes of at least three Sections. A new Women Rainmakers Section in Victoria was approved at the last Provincial Council meeting and will be listed on the 1997-98 BC Branch enrollment forms which will be mailed out in july to the complete membership. Watch for it 1 cross/sections is a new feature dedicated to section news. We welcome news from any CBA section. Call Fran Hodgkins at 687-3404 or 1888-687-3404 if you're outside the Lower Mainland.

dealing with the abandonment of the corollary relief claimed in the Petition: • dismissal by consent in the order; • abandonment by praecipe filed by the Petitioner; • abandonment by letter to the Registry signed by the Petitioner or his or her counsel.

3. Adjournment of the Corollary Re lief Adjournment of the corollary relief is a two-step process. The judge must satisfy himself or herself, pursuant to section 49, that it is appropriate to divide the proceeding and deal with the divorce separately from the corollary relief.

A desk order divorce will generally not be granted and the other relief adjourned unless material filed indicates that the other party consents to it or, at a very minimum, is aware of it and does not oppose it. Even where it is clear that both parties consent to the splitting of the relief, the material must generally provide some reason for granting a divorce and adjourning the balance of the relief. Remarriage plans of one or both of the parties is one obvious reason for dividing the relief. Another good reason is where the other party's whereabouts are unknown.

Often a draft order contains a clause adjourning corollary relief for no apparent reason. For example, where the parties have, since the filing of the Petition claiming Family Relations Act relief, executed a separation agreement or minutes of settlement purporting to settle all outstanding issues, itis inappropriate to seek an order which suggests on the face of it that there are issues remaining unresolved.

4. Restriction s on the Obligation to Pay Child Support

Agreements or orders regarding child support must be at least as generous as the Divorce Act. Many draft orders which ar e submitted inappropriately restrict the child maintenance obligation.Forexample,anagreementproviding for support for the child as long as he or she lives with the custodial parent does not allow for attendance away from home for secondary education and, accordingly, it is unacceptable.

Problems frequently arise from using the following type of precedent for the definition of the child maintenance obligation in the separation agreement: "The Respondent will pay maintenance to 4

the Petitioner for the support of the child, Johnnie Doe, in the sum of $500 per month commencing January 1, 1997 and continuing until the occurrence of the first of the following events: The child a) marries, b) ceases to live with the Petitioner, c) attains the age of 21 years, d) becomes self-supporting.

If this wording is used in the separation agreement then when the time comes to apply for a desk order divorce the paying spouse will be confronted with the effect of Practice Direction #7 which imposes a greater obligation than he or she bargained for. That spouse may not be willing to cooperate.

5. Unenforceable Provisions Some counsel wish to incorporate the provisions of the separation agreement into the order. This is a difficult task undertaken at the drafter's peril. The wording of many terms of the separation agreements defy translation into enforceable orders. A provision such as the following will result in rejection of a d raft order: "THIS COURT FURTHER ORDERS that the parties undertake to attempt at all times to exert their best efforts to cooperate in maximizing the best interests of the child."

Inclusion of only the mo s t important provisions of the separation agreement in the order, or reliance on the separation agreement separately, is usually the best route to an order that will avoid rejection. A separation agreement can always be filed as an order of the Court if enforcement becomes a problem.

6. The Risk of Judicially Abolishing Third Party Rights

Usually the provisions that risk rejection on this ground are those that deal with property and debts. An example of a provision which inappropriately expresses a property interest is: "THIS COURT ORDERS that all right, title and interest in and to the matrimonial home situate at 1234 West Avenue in Vancouver shall vest in the wife absolutely."

The obvious question is whether the mortgagee might be judicially removed from title. An order that the husband convey his interest in the matrimonial home to the wife is appropriate.

The following order is frequently sought with respect to payment of debts: "THIS COURT DECLARES that the BarTalk Vol. 9 No. 3

SECTION TALK

Respondent shall be solely responsible for payment of the $50,000 personal loan from the Willingdon Branch of the Bank of Montreal."

The order should read that "as between the parties, the Respondent shall be responsible for the payment of the indebtedness."

7. Defects in the Affidavit of Service A surprising number of desk order divorces are rejected because of a defect in the affidavit of service. The most commonly rejected phrases used in affidavits are: "The person served admitted that he was the Respondent and the proper party to be served."

"The person served produced a drivers licence# 123456 which bore his photograph."

Practice Direction #3, Part II sets out the requirements for the identification of the party: "Where the affidavit of service does not have a photograph of the Respondent spouse as an exhibit, it is insufficient proof of service for the process server merely to depose that the person served admitted he was the Respondent and the proper person to be served. Some means of identification must be shown in addition to the simple admission, e .g., "that the person produced aBC Driver's Licence #123456 in the name of (the Respondent) and the photograph thereon was a good likeness of the person I served."

8. Orders for Divorces "Forthwith"

In many cases "forthwith" orders are rejected as inappropriate. When counsel submit an applicationfor a "forthwith" orderunders.12(2) of the Divorce Act, it would be prudent to submit an alternative form of order in the usual form so that rejection and the resulting delay do not compound an already difficult situation. A letter should accompany the material making it clear that the alternative order is submitted in case the "forthwith" order is not appropriate.

Re-marriage as a reason for urgency is often refused by the judge dealing with the desk order divorce unless the wife is pregnant.

9. References to Other Documents in the Child Support Fact Sheet It is inappropriate to fill out sections of the Child

Support Fact Sheet with the words "see Petitioner's property and financial statement" where, for example, the form requires that the Petitioner's income and expenses be set out.

10. Use of Grounds Other than Living Separate and Apart for at Least a Year

Section 8(2) of the Divorce Act sets out alternate June. 1997

grounds for divorce: adultery and physical or mental cruelty. Unless there is compelling independent evidence, usually from a medical practitioner, it is unlikely that the Petitioner can establish cruelty as a ground for divorce. Where the marriage is of a very short duration, a Petition based upon allegations of adultery or uncorroborated allegations of cruelty is not likely to be successfully processed as a desk order divorce.

11. Miscellaneous Contents of Orders Other common reasons for rejection are: a) Frequently orders for child maintenance are expressed to be made under the "Divorce Act (Family Relations Act) or otherwise at law".

The order must specify the enactment pursuant to which the maintenance is being granted. b) Orders must not include provisions for retroactive maintenance. c) If the order grants joint custody it should specify the primary residence of the children.

12. The Notice Issue Desk orders specifying maintenance or other relief of which adequate notice has not been given in the Petition will not be granted. Where the Petition does not specify the amount of maintenance claimed but the order does, qr where the corollary relief sought in the order differs from that claimed in the Petition, the order will only be made by consent.

COPIES AVAILABLE For a full copy of the 16-page paper from which this report has been abridged should contact Fran Hodgkins at the B.C. Branch, C. B.A. office. +

What does "Per Stirpes" REALLY mean anyway?

Mary Hamilton addressed the Wills and Trusts Subsection with some eye opening comments about the use of the term "per stirpes". Her remarks centred on the case of Hamel Estate, (1995) 9 E.T. R. (2d) 315 (B.C.S.C.), a decision of Mr. Justice Meiklem. In Mary's opinion this case demonstrates why even professional drafters of wills, such as solicitors, should stay away from the term "per stirpes", even if we believe we know what it means. Quite often the Court may re-interpret it in a different fashion than our Continued over 5

SECTION TALK

The problem with "Per Stirpes" Continued from poge 7

client's instructions.

In this particular case the deceased died at the age of 93 leaving five children all alive, 13 grandchildren and 33 great-grandchildren. The deceased died with a will drawn by a solicitor in which the residue was dealt with as follows: "Hold residue in trust for my issue alive at my death in equal shares per stirpes .. ."

There was also a clause providing that each share for such issue be held in trust until that issue reached the age of 19. The question to be asked was; Was the residue to be divided among the deceased's five children or among the entire group of 51?

Mr. Justice Meiklem reviewed the two lines of cases. In the Ontario decision of Re :

Harrington Estate (Ont. CA., 1986) the Court concluded that "issue per stirpes" meant the children and issue of any deceased children. The other line of cases'which followed Re:Linklater Estate (B.C.C.A., 1967) interpreted the phrase "equally per stirpes among my issue then alive" to mean all descendants in all degrees and not to the children only.

Mr. Justice Meiklem found that the term "per stirpes" used in the will of the deceased had to be construed to benefit all the testator's descendants who were alive at her death in equal · shares.

Therefore the estate was to be divided equally among the 51 beneficiaries. Costs of the application were awarded to all of the parties.

This cases raises an important practice point.

Will drafters should use PLAIN LANGUAGE to say what they mean. By using the term per stirpes • one may end up with an undesired result.

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• members of the legal profession, their employees 6

BarTalk Vo l. 9 No. 3

Tradition and Reform in the British Columbia .Court of 路Appeal Chief Justice Allan McEachern reflects on change in the upper court that the judges assigned to that service weren't BarTalk: In the Bar, there seems to be a fairly common perception that you entered the very happy. After taking their positions, they all judiciary as something of a reformer and that seemed to want to transfer to general work.

Largely because of that experience, I thought you have become much more conservative during the latter part of your career. Do you it best to just establish a separate division within agree with this perception? the court so that judges could be rotated into family court for a ChiefJustice:Well,I'venever period of time, then do something thought of myself in quite those else for a while and then maybe terms and I rather doubt if there go back to family law for another really is such a perception period. i'm not positive this because there are so few of us left from that distant past. However, system . is better than the freeI do believe today that reforms standing courts, butinmyviewit never work out quite the way was a better way to go.

BarTalk: You almost make it you plan them and, therefore, I try to be very careful and to seem as if you didn't do very proceed cautiously. If labels are much. But what about Rule 18(a)? useful, which is doubtful, I think That is now perceived to have been a major reform initiative on of myself more as a traditionalist because I think there is much your part. good in the system we have, and Chief Justice: In the early 1980s, the Law Society we should always be careful not Chief Justice: 1think there's a to throw useful procedures away serious r isk of assuming that some approached me to do something master plan is going to change too readily. about the cost of litigation. The things dramatically.

I'm much Treasurer of the time told me that The perception you mention, pe rsuaded to the view that the if there is one, may h ave derived lawyers couldn't afford to litigate accidental theory of hi story is far anything with a value of less than from my early days on the Trial more valid than the conspiratorial $20,000 (which seems kind oflow Courtwhenanumberofchanges or the planned theory of history. were made gradually, as the need now), and so I embarked upon an seemed to arise. For example, after a great deal attemptto provide a fast track for straightforward of consultation with thejudges路and with the Bar, litigation. As a consequence, the Bar rose up in its we did initiate a separate family division and a wrath at that time and accused me of some separate division for hearing contested chambers terrible things-trampling on the hard-fought applications-a reform which was later rights of citizens to have their day in court when abandoned. Those were responses to needs that they meant their week in court, I think, or their were perceived to be necessary. month or their year. ...

There has always been a lot of talk about As a result of that dialogue, Rule 18(a) restructuring the court system; taking the whole emerged. But even Rule 18(a) hasn't worked out thing apart, merging courts, creating new courts as planned. It was thought that it would be a way and turning everything upside down. In the to get around the pleadings problems that faced early 1980s, there were reform initiatives in some plaintiffs when they had a straightforward case provinces, including New Brunswick and and all the defendant had to do was file a defense Manitoba-and very much so in Australia-to that raised an arguable case and you were on to create separate, free-standing family law courts. the trial list and that delayed things for a year.

My impression of those reforms, although not based on detailed or scientific information, was Continued over June 1997

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In conversation with Chief Justice Allan McEachern Continued from poge 7

compare with the situation in British Columbia?

Chief Justice: It's really a question of how you're calculating the waiting period. If you calculate it from the date of the notice of appeal or the trial judgment, it's well over a year, which is far too long. But if you are calculating it from the time when the factum is filed, it's five to six months. The main cause of delay in appeals is getting the transcripts and that's a mechanical problem and a financial problem that the Ministry of the Attorney General is struggling with and making some very far-reaching decisions that a lot of the members of the Bar don't agree with.

BarTalk: We assume you're talking about the provincial government's recent decision to eliminate court reporters?

Chief Justice: I have no doubt that court reporters provide the

Rule 18(a) was thought to be the answer to that arid while I'm not the father of Rule 18(a), I may be the grandfather because my initial initiatives, taken at the request of the Bar, were to provide some vehicle to move these straightforward cases along more expeditiously.

Whatwehavefound, though, is that 18(a) has not been confined to the rather narrow cases that we had in mind when it was initiated. It's now used in major litigation and it seems that about half of the cases are now decided under Rule 18(a). I'm not sure that it's always suitable for major litigation, but on balance it's been a very positive step, I think. It has saved a lot of delay and a lot Chief Justice: W e need to rea lize best system. I think a lessening of accuracy and efficiency is a of expense and gets some classes that, although a bunch of reformproblem whenever you go from ers in the Canad ian Bar Associatof cases tried very quickly. professional court reporting to But these reforms were ion are always recommending change, there are a lot of very some other system. However, I incremental and they were not conservative lawyers who aren't realize there are other constraints the result of any reforming zeal. that keen to change anyth ing and that have to be recognized and I think there's a serious risk of would like to be left alone. And court reporting is expensive. assumingthatsomemasterplan we, in the judiciary, wou ld someBarTalk: What about some of is going to change things t imes just like to be left alone too. the proposals for reform in the dramatically.

I'm much Appellate Court made by the CBA Task Force? persuaded to the view that the accidental theory Chief Justice: I don't think there's very much ofhistory is far more valid than the conspiratorial there about which we have any disagreement. or the planned theory of history.

It's all pretty straightforward stuff. However, I We need to realize that, although a bunch of reformers in the Canadian Bar Association are do think it's easier to make recommendations always recommending change, there are a lot of than it is to put them into force.

I'm also not sure what some of the very conservative lawyers who aren't that keen recommendations would actually mean in to change anything and would like to be left alone. And we, in the judiciary, would sometimes practice. Recommendation 24, for example, proposes that every Appellate Court take a more just like to be left alone too.

BarTalk: Well, of course, the CBA did active role in supervising the progress of appeals. produce such a plan in the form of the Systems of That's a very general, motherhood kind of Civil Justice Task Force Report that was released statement. But I don't know how much more last summer. And much of the impetus for that they think we ought to do than to monitor the report came from the perception that delay in progress of the appeals as we do, call the litigants court procedures was a matter of serious concern. in if an appeal sits for a certain amount of time For example, the report stated that: "The situation and give them a warning and eventually end up-if nothing happens for a period of timein Ontario is particularly acute. The delay from notice of appeal to resolution is reported automatically dismissing the appeals anecdotally to be three to five years, and it administratively.

We dismiss 500-1,000 appeals every year continues to lengthen." How would that situation administratively. I don't know how much more

••PIIIIIII!I•?.

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BarTalk Vol. 9 No. 3

active than that we ought to be-especially why don't the judges recognize this and why since certain senior lawyers in this province don't they recognize that?"

I merely wanted to remind people making take great offense when any of their appeals are put on any inactive list. They say: "Why should those kinds of statements, and the public, that you assume that because we haven't filed our judicial decisions are not made according to the factums that we're not aggressively pursuing whims of individual judges. We are expected to this matter with our friend to try and arrange a apply the law. We hear people who should know compromise? Why do you stick your nose into better complaining about a "dumb" decision something that's not causing without even considering whether it was a decision that the law you any trouble?"

I have considerable requires. For example, there was sympathy for that response. quite an interesting debate recently The court, however, is only about the release of an accused on reacting to the criticisms we're bail. Thedebatethatwentonoutside getting that some appeals are the judiciary and outside the legal long-delayed. I think the view profession didn't pay any attention is that we ought to be pushing at all to what the Criminal Code lays down about bail. the lawyers along more than we do. I think, though, that if I just wanted to remind anybody you asked a representative who happened to come across what group of lawyers about this I said that we are not going to bend and twist to every criticism that we issue they would say that we're active enough in the hear. We try to be as responsive as Chief Justice: When did the we can, but our critics cannot expect management of the progress defence of the Ru le of Law make of appeals and need no pushing one into a conservative? If there is us to be constantly changing the law. Parliament makes the law: we from the court. one problem that we have w ith BarTalk: On another our public persona, it's that our just apply it as best we can, and, matter, at the Commonwealth ro le is so often misunderstood. It's notwithstanding what some critics assumed by many commentators think, we would be unfaithful to Conference you d e Iivered a that we are free-standing agents of our Oath if we decided cases any paper in which you appeared the state who make decisions other way. to be critical of comments about based upon our personal views the sensitivity of the judiciary without recogn izing the very, very It's rare that we make decisions to public opinion and to severe limitations that control the based upon our personal views: changing public mores. The decisions that we make. there are just too many constraints, paper caused a great deal of including the law of evidence, the controversy and comment in some of the media general law, statute law, the need to confine an.d perhaps contributed to your reputation as a decisions to the evidence and the law, the need conservative on the Bench. Could you clarify for judges to state reasons for decision in terms your intent in making the remarks that you did? that explain what has been decided and why it Chief Justice: Good Grief! When did the was decided in that way .. ... Then there is the defence of the Rule of Law make one into a appellate process, the scrutiny of the academic conservative? If there is one problem that we community, the media, the Bar, collegial have with our public persona, it's that our role scrutiny-we all watch what our colleagues are is so often misunderstood. It's assumed by many doing-we talk about decisions all the time. It's commentators that we are free-standing agents all a very disciplined and controlled process. of the state who make decisions based upon our I think the failure of many of these personal views without recognizing the very, commentators is in not recognizing that these are very severe limitations that control the decisions decisions that are principled and based upon a that we make. disciplined process. If they recognized that, they That paper was mainly a response to a lot of might not be quite so critical. public comment and criticism by certain interest BarTalk: Would it be fair to sum up your groups that the courts were insensitive and also to politicians who were saying things like: "Well, if those are the laws, then we'll get new ones and Continued over June 1997

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In conversation with Chief Justice Allan McEachern Continued from page 9

comments at that time by saying that you were concerned that the independence of the judiciary might be threatened by this kind of public and political pressure?

Chief Justice: Yes, but, it's more than that.

It's not a question about whether we are protected from pressure or that our independence be preserved. Our independence is not threatened in any way that I see as long as we stand firm and say: "We will apply the law as we see it." My only response to that kind of criticism is that it is often based upon a misunderstanding of what our process is and a failure to recognize that ours is a disciplined process and not based upon personal views or personal predilections or attitudes about one kind of case as against other kinds of cases.

BarTalk: What about other reforms that are, perhaps, simpler and based more upon the human aspects of the judiciary? There have been suggestions, for example, that judges should be appointed to a fixed term to the Bench, instead of life. Some say that a fixed term would encourage the recruitment of younger lawyers to the Bench.

It would also allow judges to return to active private practice earlier in their lives.

Chief Justice: I think fixed terms would be a very dangerous development that would destabilize the Bench. Good judicial material would not accept such a term because they would not know what would happen to them when their term was up, and everyone cannot just pick up his or her practice where they left off. Moreover, independence would be at risk if judges were thought to be making friendly decisions in hope of re-appointment. Others might welcome appointment for a fixed term for the wrong reasons, such as resume enhancement, and others might not have the commitment that we expect of our judges now. I'm still of the view that when you go on the Bench it should be for the rest of your professional life or up to age 75.

I don't want to stop somebody from having a professional life after 75, but I think that the judiciary is and should be a stable institution. I don't think there should be comings and goings.

I think that one should stay as long as one can comfortably and competently continue to do the job. I recognize that there may be individual

10

circumstances where a judge would feel that he or she has been in the job long enough and wants to move on. I can't question that or disagree with it. From the institutional point of view, I do believe that when lawyers join the Bench, they should do so with the expectation that they are making a career decision that will last until retirement.

I realize that some people think 10 years is enough. The judges of the Supreme Court of Canada, for example, have obtained an amendment to the Judge's Act to permit them to leave on pension after 10 years on that Bench and 15 years of judicial service. They think 10 years is enough for some of them. That's not to say that they're all going to leave after 10 years- they just want that option. But I'd rather not comment on the Supreme Court of Canada. Also, don't forget there's a small problem of the Constitution. There is no provision for fixed judicial terms in Canada except mandatory retirement at age 75. That's a detail that the reformers should not overlook.

BarTalk: We can certainly understand the need for stability on the Bench. However, we are concerned that some very worthy people may balk at making a lifelong commitment to the Bench. After all, it's a very serious decision, almost like taking religious orders. Perhaps we'd attract more of the better and brightest if people felt there was a limit to their term.

Chief Justice: I do not accept for a moment that you would get better and brighter people with a fixed term. You would lose more than you would get. I agree that life changes when you join the Bench-there are differences-but I don't think that life changes all that much, unless you want it to change. One can become a hermit or a hermitess, or whatever the correct term is, but one is not obliged to do so. I don't think our children suffer from it, but our spouses may find it more restrictive than we do. Speaking for myself, though, I think that generations of judges have created a bit of a myth about the monastic life that they have to lead, I just don't think it's necessarily true, although some may choose to make it so.

BarTalk:Your comments about judicial terms might provide further ammunition for those who would label you a conservative. However, there is one area in which we believe you are perceived by many to be a fervent reformer. You have been a very aggressive proponent of increased computer technology and the Internet. Arguably, the Court of Appeal. has led the way in this BarTa lk Vol. 9 No. 3

direction. Why have you supported this new technology so enthusiastically?

Chief Justice: There is an enormous amount of paper involved in the judicial process. I don't think we should aspire to be like some American courts which claim to be evolving quickly into paperless courthouses. But when you look at the transcripts in a long trial and realize how little of it is used on an appeal and how much of it can be summarized in a few excerpts, you realize what a terrible waste there is. The computer and other electronic means of management make it possible to reduce that to a very, very marked degree and I haven't any doubt at all that the computer will be an enormous aid to reducing cost and hastening litigation along.

But it's a slow process. In the World Wars, it was said that a convoy only moves at the speed of the slowest ship. We have to get the Bar up to speed because until the Bar is computerized entirely, we'll have to run a dual system. I think we have to get out in front as much as we can and try to drag the Bar along with us. Some parts of the Bar are ahead of us, but most of the Bar is astern of us and I have every expectation that just the ordinary progress that goes on in the world will lead the Bar to recognize the need to become computerized and to take advantage of these new opportunities. We're not going to be a paperless courthouse, but I've said a few times that we should be a less papered courthouse.

BarTalk: We understand that you are concerned about the level of staffing in your court today.

Chief Justice: We have a logistical problem.

I'm rapidly losing my supernumerary judges. I had 12 of them at one time and I'm down to seven now, I think, and I'm going to lose four more in the next couple of years. I just got two new regular judges who replaced the equivalent of four supernumerary judges.

Our complement is pretty well fixed and I don't think it's going to be increased much. I think the government believes we ought to streamline the process before we add many more new judges and therefore the few of us who are left behind are going to have to deal with whatever caseload comes along. I have to say this, though, that recently there's been a drop in the number of filings in the trial court and to a lesser extent in our Chambers work.

That's explained by increased filing fees and by Rule 65 in the Supreme Court, which has reduced- temporarily at least- the number of June 1997

chamber applications and a major part of our work comes from chamber decisions including of course, all of those Rule 18(1) applications.

So, maybe our caseload won't increase and maybe our complement will be sufficient. That remains an unfolding mystery.

BarTalk: You are now 71 and in four years time will retire. What would you most like to be remembered for when you are no longer active on the Bench?

Chief Justice: I saw something the other day on the Internet about Oliver Wendell Holmes who said that we shouldn't expect too much and if at the end of our career three or four people say, "Well done," that's about as much as we should hope for. I don't think that we should expect to be remembered for anything in particular.

This job is a very attractive one, it has many, many advantages and it's an enormous opportunity for an interesting life. I've been particularly fortunate because I had 28 years of practice, busy practice, and now I've had 18 years on the Bench. That's two complete careers.

When I think: "Okay, now what do I want to be remembered for in practice?" I can't think of anything in particular. I had some satisfied clients and I had some dissatisfied clients. As for my experience on the Bench, well, the time has gone very quickly. But it's been a very satisfying and interesting way to spend my life. How can you ask for anything more than that?

BarTalk: Would you care to say anything to young lawyers who are just beginning their careers?

Chief Justice: I heard the other day that the universe will only unfold as it should if it was folded correctly in the first place. Well, I think the universe is properly folded, the students who are coming out are getting a great education and if they just keep working as hard as lawyers have always worked, the good ones will succeed and take the place of the good ones who have gone before them.

BarTalk: Thank you very much for taking the time to talk with us. We've enjoyed it very much. •

II

Mortgage scheme growing Continued from page I

retainer I search reporting letters to purchases and publishing guidelines to the profession that would set out the advantages of standardized practices and the risk entailed in failing to meet these standards.

The second initiative-undertaken by the Law Society-is a request to the provincial government to change the Consumer Protection Act and the Land Title Act in order to protect

Legislative protection suggested for mortgage transactions The provincial government has been asked to change two laws to help protect consumers in residential mortgage transactions.

The proposed amendments to the Consumer Protection Act and the Land Title Act would ensure that borrowers who are at risk of being unduly influenced by others with different interests in residential mortgage transactions get legal advice.

Up until the introduction last year in BC of title insurance, such protection was traditionally available to BC consumers.

In most secondary financing mortgage transactions, both lenders and borrowers are represented by lawyers and therefore get legal advice. However, in title insured transactions, lenders buy title insurance to protect certain of their rights under the mortgages but borrowers, on the other hand, do not receive legal advice or protection under lenders' insurance.

The proposed changes would effectively protect borrowers in residential secondary financings without enacting sweeping legislative and regulatory requirements to cover the issuance of title insurance in the province. Many institutional lenders already make sure that borrowers who they consider to be vulnerable get legal advice on their transactions and the proposed changes would not impair the ability of institutions to prepare their own mortgages, which are documents for security on loans.

The bid by the Law Society of BC to change the laws stems from the practice requiring lenders in title insured transactions to require borrowers to sign a "Mortgagor's Acknowledgment". In this document, records that the lenders recommend legal advice (but the borrower declined) and notes that the borrower's interests are not protected.

Because lenders offer costs savings only to those borrowers who decide not to take legal advice, there is considerable pressure for the borrower to sign the acknowledgment and not seek the advice of a lawyer, thus creating a power imbalance between the lending institutions and the borrowers. +

consumers who may be at risk in residential mortgage transactions. (See accompanying sidebar article.)

The title insurance policies that lenders buy protect their interests, not those of the borrower, raising the issue of consumer protection as an area of concern to the Bar. Title insurance covers losses incurred by lenders resulting from title defect problems, including losses due to forgery or fraud and defects which would have been discovered had an up-to-date survey been conducted prior to a mortgage loan being made.

The net result of the program is the elimination of the role traditionally played by lawyers, whose role in title insurance is merely to serve as a witness to the borrower's signature, thus meeting the requirements of the Land Title Act that mortgages be witnessed by "officers" before being registered.

The lawyers do not give legal advice whereas prior to the introduction of title insurance, borrowers in mortgage transactions in the vast majority of cases did get legal advice on their transactions.

Tony Spagnuolo, a member of the CBA' s Title Insurance Committee, says members of the profession who want to stay competitive and retain market share have to seriously look at taking advantage of new technology and new techniques.

"The ultimate goal must be to develop an interacticve conveyancing practice technology and software system in order to help lawyers stay at the forefront of real estate practice in the province, " Spagnuolo says.

While such systems may be expensive to develop and implement, if set up properly, documents can be processed and registered and loan proceeds made available within a matter of hours.

Technology is already an integral part of real estate law in Ontario, where the LPIC (the Lawyers' Professionallndemnity Company) has developed the TitlePlus program which includes template software for standard conveyancing documents, electronic checklists which must be completed before title defect insurance will issue, electronic links with lenders and in the future, land registries and training for lawyers and their staffs.

However, while the Ontario program will be evaluated, there's no indication whether any of its elements will lend themselves to use or adaptation here in BC

•

12

BarTalk Vol. 9 No. 3

Law Courts Education Society's Fundraising Drive Sponsors offered public relations opportunities Law firms and individuals can now support public legal education and at the same time gain significant public relations opportunities for themselves by supporting the Law Courts Education Society's "Campaign 97. " This province-wide fundraising drive was launched after the Society's government funding was cut by approximately two-thirds.

Martin Taylor, Q.C., chair of the fundraising committee, says: "Firms and individuals can demonstrate their support of public legal education in this province by sponsoring one or more of our seven donor recognition opportunities."

General sponsors will have their support recognized in the tens of thousands of Society courtlists and general Society information handouts. Sponsors of specific programs will have their support prominently featured in that program's materials. For example, a sponsor can choose to support the printing and distribution of information on the justice system in any of eight languages to the Chinese, South

Asian, Hispanic, Polish, Korean, Persian, Arabic or Vietnamese communities.

Another option is for firms to sponsor threeday "Courtlink" sessions for either youth at risk or immigrant youth. These are local community events that help local youth understand how the justice system works; they include many publicity opportunities.

Sponsors can also choose to support educational rna terials or courtw a tching activities for adults and youth learning English as a second language. Or they can choose to support courtwatching sessions for up to 10 high school and elementary school classes in their local areas.

The Society's information is distributed to thousands of households arumally. Over the years, the Society staff have worked with more than 400,000 British Columbians.

Tax receipts are available for all sponsorships.

To obtain a copy of the Society's Donor Recognition Opportunities, contact Executive Director Rick Craig at (604) 660-9870 or by fax at (604) 775-3476.

•

Arbitrators needed for proposed trial overflow program The British Columbia International Commercial Arbitration Centre is looking for lawyers to act as arbitrators in cases bumped from the courts in a proposed newTrial Overflow Program. The purpose of the program, according to Centre Executive Director Peter Grove, is to provide efficient and less costly arbitration alternatives to civil litigants who cannot proceed with trials on their assigned court date due to lack of court facilities. The program will operate as follows: • The Centre will act as the Secretariat to a "Roster Committee", made up of representatives of all interested sectors, administering a Roster of arbitrators who meet certain criteria. The Roster will be open to all arbitrators who meet specified criteria. The Committee will be responsible for the policy and management of decisions affecting the composition of the roster.

• The Centre will monitor the availability of arbitrators on a weekly basis; • The Centre will keep informed on the trial schedule of the Courts; • Requests for arbitration are to be made to the Centre which will immediately provide a standard form of

June 1997

arbitration agreement, a list of available arbitrators, their qualifications, available meeting rooms and facilities. The clients and counsel will list the arbitrators in order of preference and the Centre will make the appointment.

Requests can be made by phone or to a representative of the Centre who may be available in the Court house.

The BC Government established the Centre in 1986 to provide the arbitration infrastructure set out in the Commercial ArbitrationAct and thelnternationnl Commercial ArbitrationAct. The Centre is one of the leading institutions in Canada providing a full range of neutral alternative dispute resolution services, both binding and non-binding.

It provides information and referral without charge and administers arbitrations and mediations on a fee for service basis.

Lawyers who meet the minimum qualification of ten years at the bar and ten paid and completed arbitrations and who would like to be considered for the Roster of Arbitrators may obtain further information about the program by phoning 604-684-2821 or faxing: 604-6411250. In the event that the Program proceeds, those who have indicated an interest will be contacted. +

13

EXECUTIVE DIRECTOR'S COLUMN

How do we look after our own?

Branch organizes Benevolent Society to help those in the profession who have fallen on hard t imes

lli BARRY CAVANAUGH, Executive Director, BC Branc h, Canadian Bar

Association

14

them-so that no-one falls through the cracks ently, as a result of an initiative by the xecutive Committee of the Branch, the and so that we are always able to respond to a BA(BC) Benevolent Society was genuine need?

How do we look after our own? One clear corporated. Under the leadership of former Branch President Terry LaLiberte, who way has been the Lawyers' Assistance Program, was instrumental in the establishment of the now under the capable leadership of Executive Society with the current Executive Committee, Director Derek LaCroix. You'll find an article by Derek on the next page in which he discusses the first Board of Trustees includes: H.A.D. Oliver, Paul Beckmann, Georgialee Lang, how members can find the help they need through Deborah Van Ginkel, the LAP. I applaud and Gary Cohen. I will Derek and the other "Among our colleagues, some find be serving as folks in the LAP for themselves in desperate circumstances Executive Director of their efforts on our to time and in need of help. from time behalf-for indeed, the Society for the Where is there to turn? Often, it seems as present, administering when one is helped, all all the Society's affairs of us are helped. if very few outside our profession are and accounts through However, I believe the concerned about those colleagues of ours the Branch. contributions of the and it seems fair to ask: "If we don't look Branch Benevolent The need for this after one another, who will?" sort of cooperative Society will be effort in our professcomplementary to ion has possibly never been greater. In recent those of the LAP, providing a different kind of years, the Bar has been rife with stories of help in different situations.

Even as the criteria for Society assistance are members falling on hard times, financially and otherwise. Illness can take an unexpected toll, in development, even as the accounts are being emotional problems and other stressors can get established, the needs come to our attention and out of control... there have even been examples there is very little we can do to respond. So it is of members so desperate that suicide seemed a that our first priority is to begin raising funds. solution. These tragedies have left young families The plans include a number of major fundraising without a parent or a provider and also left efforts and the first of these is the Executive many of us wondering what went wrong and Committee's decision to commit the Branch Golf what we could have done to help.

Tournament onJ une 26 to the Benevolent Society.

In future, we hope to develop a "planned Among our colleagues, some find themselves in desperate circumstances from time to time giving" program and other initiatives. At the and in need of help. Where is there to turn? present time, however, the real need is simply to Often, it seems as if very few outside our ask that all members of the profession in BC profession are concerned about those colleagues support the cause. Your cheque to the Society, of ours and it seems fair to ask: "If we don't look which can come to the Branch, is, we are advised, after one another, who will?" deductible as a legitimate business expense. We Ours is a profession characterised by a spirit do hope that individuals and firms will look of generosity and compassion toward our own. seriously at committing some resources to this This has been amply demonstrated by a number worthy and necessary project. The fund needs a of fundraising efforts during the past year sound base before it can be of any meaningful intended to help lawyers, or their families, who service to the profession. The legal community of have found themselves in need. Other examples British Columbia is known for its collegiality, its abound of members helping one another. How, generosity and its cohesion. This is your then, do we organise to make certain that we can continue our good efforts-and even extend Continued over BarTalk Vol. 9 No. 3

opportunity to demonstrate that we are, indeed, united in concern for our own.

Finally, on another matter, the Branch is continuing its efforts to improve service to you.

Following up on our recent installation of a toll free number, we shall soon be adding voice mail.

I promise that we shall choose a system which will never leave you lost in an endless voice mail

"loop." For those who prefer human interaction, a real operator shall always be close at hand, ready to assist. But the new system will incorporate many improvements, including the capacity to direct after-hours calls to specific staff and department members. You'll always know that we've received your calls and I promise that we'll call you back! +

New Executive Director joins Lawyers Assistance Program confidential support, counseling, and referrals

By

Derek LaCroix

I am the new Executive Director of the Lawyers Assistance Program. I graduated from UBC law school in 1974 and was called to the Bar in 1975 and practiced continuously until 1993. At that time I moved to Portland, Oregon, to help start a biotech company which is developing an implantable glucose sensing device.

When the opportunity to return to British Columbia and work with lawyers came up, I jumped at it. I like lawyers and I like hanging around lawyers. I have fond memories of law school and of my law school classmates and my favorite part of practicing law was talking with my peers in the barristers' rooms and coffee shops. As criminal law was the largest part of my practice, I got to do a lot of that.

I also have a particular interest in working with others and particularly in working with others who are having some distress. In that area, I have a considerable amount of experience and training and substantial practical experience.

I went to law school with the intention of helping people and throughout my career I have endeavoured to do so. As I discovered my passion for working with people, I began training and I received a Diploma in Counseling. For the past several years, I have spent most of my spare time leading groups of one sort or another.

The Lawyers Assistance Program provides June 1997

for lawyers, their spouses, judges, law students, legal assistants and legal secretaries suffering from alcohol and/ or chemical dependency, depression or just about any type of personal problem. We have a network of volunteers, many of whom have been through and successfully dealt with personal problems of their own. These volunteers provide peer support in a highly confidential, respectful and caring way. These volunteers can be in support and can discuss life from the perspective of somebody who has gone through the same problem and is also in the same kind of position.

The practice of law has become more and more stressful over the years as competition has increased and respect for lawyers has diminished.

Lawyers have now obtained the dubious distinction of having the highest suicide rate and of having the highest rate of depression of any occupation. The rate of alcoholism and addicition is also significantly higher than for the general public. We work in a particularly stressful milieu and, by the nature of our personalities, our training, and the need to be productive, we tend to be rugged individualists who want to go it alone and show no weakness or fear and we certainly do not want to ask for help. I hope that by becoming more aware of the signs and indicators of various sorts of distress and of the remedies available and by becoming more considerate of our fellow members we can help overcome these troubling trends and make the practice of law more rewarding and life more fulfilling.

I look forward to working with you in the coming years and meeting as many of you as possible. If you want help for yourself or for another, want to help, want more information, have any questions, or just want to say "Hello," call me at (604) 685-2171 or toll free at 888-6852171. • IS

New Improved Provincial Court rules effective June 15, 1997 By Administrative Judge Ross Tweedale

The Provincial Court Small Claims Rules have undergone the most substantial revision since their introduction in 1991 .

The aim of the changes is to enhance the just, speedy, inexpensive and simple procedure in BC Provincial Court civil cases. Here are the highlights: The Settlement Conference

• The parties must now bring all relevant documents and reports to the conference. The previous wording only required the party to bring all documents and reports that the party was going to rely on at trial. Problems arose because lay people often did not bring essential documents that needed to be disclosed. A further settlement conference then had to be held. The aim of the new rule is to have both the mediation and pre-trial discovery process take place more effectively.

• Rule 7(14) expands the authority of the settlement conference judge to order production of documents and records, whether a party chooses to rely on them at trial or not.

• The judge may also now dismiss a claim, counterclaim, reply or third party notice if it is frivolous or an abuse of the court's process.

• The remedies for failure to comply with a disclosure order are now particularized.

• A simple procedure is mandated for failure to comply with a settlement agreement. In summary, the agreement is cancelled and the claimant may file a payment order after filing an affidavit of non-compliance. The rule is intended to eliminate or minimize a party having to return to court to get another order when the other party fails to carry out a settlement.

Transfer to Supreme Court

• Previously, matters could only be transferred from Supreme Court to Provincial Court. New Rule 7.1 allows the transfer of claims to Supreme Court where the monetary outcome of a claim may exceed $10,000. Lawyers may want to advise their clients to initiate the claim in Provincial Court, knowing that if further evidence shows the monetary outcome may exceed $10,000 that the judge must transfer the case. The issue of the limitation period for commencing an action does not then arise. That is because the case is transferred instead of being withdrawn and a new action begun in Supreme Court.

• The transfer may be considered on application at any time, at the settlement conference or, least desirably, at trial.

Multiple claims

• New Rule 7.1 also establishes the right to hold one trial with multiple causes of action, even though the total monetary outcome of all the claims is likely to exceed $10,000.

16

Offer to Settl e

• New Rule 10.1 provides an incentive for parties to file and accept formal offers to settle. It will likely be helpful initially for the judge to raise this at the settlement conference, especially in cases where one party refuses a reasonable settlement offer.

• The trial judge may order a party who rejected an offer to settle, to pay a penalty of costs to the other party. The amount, up to 20 per cent of the offer, is added to or may offset a judgment.

• A formal offer must be made within 30 days of the completed settlement conference. This is to build on the momentum of the settlement conference. (A party may apply to a judge to extend the time for making a formal offer.)

Adjournments

• Rule 17 confirms the requirement that trials cannot be adjourned by consent, except with the permission of a judge.

This is for reasons of case management. The rule also provides adjournment criteria.

Naming the Right Party

• A current Registrar of Companies search will be needed when filing a claim, counterclaim or third party notice against a company or a society, to ensure the correct name and address is used.

• An expanded version of the Civil Rules for Small Claims (including a subject and forms index) and the Small Claims Manual used by court registries can be obtained from Crown Publications at (250) 386-4686.

Appeals

• Legislation has been introduced to amend the Small Claims Act. Effective for all appeals filed on or after September 1, 1997, the appeal will be based on the record from the Provincial Court trial, on questions of fact and law. This replaces the current appeal process which consists of a new trial in Supreme Court.

Special Thanks Thanks go to the Provincial Court Small Claims Rules Committee for their work on these rule changes. A lot of time has been spent and careful thought given to the many suggestions for Rules changes.The members of the committee are: Nathan Smith, lawyer, Vancouver, nominated by the Trial Lawyers Association and member of the BC Supreme Court Rules Committee;Sandra Sajko, Senior Policy Analyst and Doris St. Germain, Senior Policy Analyst, both of the Ministry of the Attorney General, Victoria; Claire Reilly, Senior Legislative Counsel, Victoria; W. E. (Bill) Grandage, Manager, Provincial Court ofBC, Robson Square; and myself.

Thanks also to Chief Judge Metzger and Associate Chief Judge Schmidt for entrusting this work to the Committee and for approval of the rules changes. + BarTalk Vo l. 9 No. 3

Member survey reveals Branch strengths and weaknesses Clear results demonstrate what you like and don't like about CBA programs

E

arly this year, the BC Branch of the CBA Sampling commissioned the firm of Campbell It was also considered importantto ensure that a representative Goodell Consultants Ltd. to conduct a sample ofthemembershipwaspolled.To this end, respondents random phone survey of the membership of the were chosen at random from a list provided by the CBA. Also, Branch. Between January 30 quotas were es tablish ed to and February 5, 1997, the firm ensure that all groups w ere conducted 600 interviews with represented in proportion to the members. The results were actual distribution mthe total Highest Member revealing, clear enough to population of CBA members. serve as the basis for future These quotas were based on DI RECTORY Branch planning. gender, region, and years since Quality of Program Continue Program? being called to the Bar.

The CHAMP Rating

SURVEY METHODOLOGY

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Members were asked to rate the quality ofBranch programs on a scale ranging from poor to excellent. If they did not know about a program or considered themselves unable to comment, they wer e included in the "Don't know" category. On all the charts, this category is clearly indicated by a blue tinted bar.

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Response rate

To ensure the highest possible response rate on the survey, it was publicized ahead of time through a special BarFax alerting members that they might be telephoned to participate in the survey.

Members were also asked to indicate whether they believed a program should be continued, with their comments ranged along a scale from "Absolutely continue" to "Terminate." However, these ratings only included members who were able to rate the quality of a program. Those who fell into the "Don' t know" category we r e not asked whether a program should or should not be continued.

Accuracy of Survey

The survey is considered accurate to plus or minus 3.9 percentage points, 19 times out of 20.

BRANCH STRENGTHS Four activities deary stood out as being strengths of the CBA because (1) most of the members rate the quality of these services to be good or excellent and (2) most of those who provided ratings think these services should be continued. They were: • The BC Lawyers Directory 83 per cent of those polled considered this service to be good to excellent with 90 per cent indicating that it should continue.

• Issues Alert & BarFax 71 per cent rated these services as good to June 1997

excellent with 88 per cent indicating that they should continue.

• Section Activities 70 per cent considered this service to be good to excellent with 96 per cent indicating that it should continue.

• BarTalk 62 per cent of those polled considered this service to be good to excellent with 74 per cent indicating that it should continue.

17

YOUR OTHER FAVOURITES BARFAX AND ISSUES ALERT Qu a lit y of Pr ogram

BarFax & Issues A lert Results of the survey showed thatBarFaxandissues Alert are highly valued by members. 71 per cent rate Bm·Fax as good or excellent and very few, only 3 per cent, rate this service below average. Those practicing outside Vancouver or Victoria (89 per cent) are more likely to rate Issues Alert or BarFax highly than those practicing in those cities (66 per cent). Members in smaller firms of 1-2lawyers tend to rate Issues Alert more favourably (75 per cent" good or excellent") than those in larger firms of more than 11 lawyers (63 per cent). The reason for this is that a higher proportion of lawyers in larger firms are not familiar with Bm·Fax.

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Section Activiti es ~fi) Section Activities were rated positively by 70 per cent of those surveyed. Also, those rating this program were nearly unanimous (96 per cent) in their support for continuing the program. Active members (87 per cent) and those living in Vancouver or Victoria (73 per cent) were more likely to rate the quality of this program as "good or excellent" than inactive members (66 per cent) or those living in other areas ofBC (62 per cent). Members with larger firms of more than 11lawyers were more likely to rate it highly than those with smaller firms.

18

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BarTalk The Branch newsletter was rated good or excellent by 62 per cent of the members, compared to only seven per cent who rated it as fair or poor. 75 per cent of those who evaluated it indicated that it should continue. Active CBA members are more likely to rate the quality of BarTalk "good or excellent" (74 per cent) than inactive members (59 per cent). Also, those practicing outside of Vancouver or Victoria (72 per cent) are more likely to rate BarTalk good or excellent than are those who practice in those cities (60 per cent). Smaller firms of one or two lawyers tend to rate the newsletter more favourably (69% good or excellent) than larger firms of 10 or more lawyers (56 per cent).

Note: The vertical (Y ~axis) varies on these charts, as you will notice especially (above) between BarTalk (45) and Section Activities (80). Be careful, therefore, in making comparisons.

BarTalk Vol. 9 No. 3

BRANCH OPPORTUNITIES LAWYER REFERRAL SERVICE Quality of Program

Continue Program?

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These programs have been identified as opportunities because most of those familiar with them believe that they should continue.

However, about a third to halfof members are not familiar enough with these services to even evaulate their quality. The Branch needs to improve member awareneness of and accessibility to these programs if they are to enjoy broader support among the membership.

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Of those surveyed, about 30 per cent are not familiar with this service. However, 45 per cent rated the service as good or excellent and a majority (81 per cent) of those who evaluated the program believe that it should be continued, far outnumbering those who said it should be terminated (four per cent). Members in Vancouver or Victoria (84 per cent) were more likely to say the service should continue than those in other areas of BC (73 per cent). Lawyers in large firms were less likely to be familiar with the service (52 per cent) than those with smaller firms (76 per cent).

PRACTICE ADVISORY PANELS

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Despite the relatively high profile of this program, a third of those surveyed were not familiar enough with it to provide an evaluation. However, of those who were familiar with it, 75 per cent believe that it should continue. Solicitors (44 per cent) were more likely than Barristers (28 per cent) to rate the program as good or excellent.

June 1997

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About a third of members surveyed rated this program positively, compared to only three per cent who rate it negatively. However, half of the members were not familiar enough with this service to rate it one way or another.

Among those who are aware of this service, though, 88 per cent stated that it should continue. Active members were more likely (42 per cent) to rate the quality of the program as good or excellent than inactive members (32 per cent).

Active members (93 per cent) are also more likely to think the program should continue than inactive members (84 per cent.)

19

BRANCH WEAKNESSES LAW WEEK Q ua lit y of Progra m

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The programs on this page are considered weaknesses because relatively few members (fewer than 25 per cent) consider their quality of service good or excellent. In part, this is because many members of not aware of these services. Still, the qualih; of these programs was rated lower than any others in the survey and fewer members supported their continuation.

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This program was supported more by active members and those practicing outside Vancouver or Victoria. This was partially because a higher percentage of inactive members and those in Vancouver or Victoria (55 per cent) are not familiar enough with Law Week to evaluate the event.

Among those who were able to provide ratings of this program, the common complaints were that it is a waste of time, money and resources, that it doesn't help the legal profession, or that it's not publicized enough.

DIAL A LAW PROGRAM Quality of Progra m

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Most of those surveyed (70 per cent) were not able to evaluate this service, probably because it is designed for the general public rather than the profession. However, 57 per cent of those familiar with this program and its purpose indicated that it should be continued.

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MidWinter Meeting Most members (76 per cent) were not familiar enough with this program to provide an evaluation. Of the members who were familiar enough with this program to evaluate it, only 36 per cent thought that it should continue. These meetings were more popular among members practicing outside Vancouver or Victoria. +

BarTalk Vol. 9 No. 3

Survey results will assist Branch Planning and Priorities Committee By Kerry-Lynne D. Findlay

Vice President, BC Branch, Canadian Bar Association

The Planning and Priorities Committee of the Branch is mandated to advise the Executive on long-term planning issues affecting Branch activities and structure and to suggest priorities for action. This year, the Committee is co-chaired

by Kerry-Lynne D. Findlay, Vice-President, and Margaret Ostrowski, Executive Officer. The membership includes Merrill Leckie, Q.C., a Past President of the Branch, John Third, Ravi Hira, Moyra Dahliwal, Georgialee Lang, and Executive Director, Barry Cavanaugh. Don Rose also joined us for part of the year, and Craig Goebel (Communications Committee Chair) provided input at one of our brainstorming sessions.

The P&P Committee has found the Campbell Goodel Traynor Consultants Ltd. survey to be a very valuable tool in assessing Branch functions and programs. The survey has provided a window on the membership, which has greatly assisted the task of determining the relative value of CBA BC activities. Together with a Communications Committee review of Branch programs completed last year, we have been

able to understand what CBA members value most and where the CBA BC should be placing sustained or increased emphasis in the years ahead. There is a definite message that has been sent-the CBA BC should be an organization by lawyers, for lawyers.

The profession is under siege as never before and members are looking for us to maintain and enhance section activity, emphasize government relations efforts, and keep going with the vast majority of the programs we already have in place. On the other hand, a few current activities are not seen as providing a direct benefit to the membership sufficient to justify the volunteer staff and staff efforts, and the expense, they require.

The P&P Committee has aggressively analyzed what the Branch is doing and will be joining the Executive and Senior Staff at their Plaruung Retreat in June. It is the Committee's job to make recommendations to the Executive which have a lasting effect on the approaches to be taken in assessing future projects and current ones. The Committee's considered opinions will keep us focused and well prepared as we close this century and face, no doubt, a new age of challenges. â&#x20AC;˘

BCAA Discount negotiated by Member Services Committee The Member Services Committee of the BC Branch of the CBA has been successful in obtaining a considerable discount in BC Automobile Association memberships for our members.

The discount is 25 per cent off the cost of yearly membership and you can take advantage of this great offer even if you currently enjoy membership in the BCAA. Here's how: I. Call the number below at least one month before your membership expires.

2. Call 1-800-268-3750, Local 3289 and ask to have

National CBA survey also indicates member satisifaction

your current coverage

The results of a national CBA member survey are expected to be published shortly in an upcoming edition of The National.

In an interview with BarTnik, national CBA President Russell Lusk shared some of the preliminary findings of the survey with us and said he waspleasantly surprised by the results, which indicated a very high approval rating.

"This survey was conducted among members and non-members," Lusk said." And not only was I surprised by the favorable conclusions of our members but I was similarly-if not more surprised-by the responses from our non-members.

"Amongst members, across the country 82 per cent said we were either doing a good or very good job and 60 per cent of non-members said the same thing. That's very gratifying.

"However, one of the things that recurs

account.

Jun e 1997

throughout the survey is our need to improve communication. I think this is true both at the Branch levels across the country and at the National level, although probably more so at the national level."

Despite these findings, Lusk said he was confident that, in future, communications between members and the CBA would be dramatically improved through the use of the Internet.

"We think the Internet has tremendous potential as a communications vehicle for our members, members of the profession across the country and, eventually, for the public and our members across Canada," he said.

Because the survey showed a much higher than expected level of computer usage among members, Lusk said the Internet was already a valuable medium of conununication for many. â&#x20AC;˘

transferred to the CBA

3. Be prepared to provide your current account and membership numbers. You will be given the address to send your cheque or payment to at the Corporate Accounts Section. Your payment will be transferred to the BCAA on your behalf.

CBA members who are not currently BCAA members can simply call the number above and request a new CBA member account.

21

Vancouver-based Centre develops program to combat money-laundering in the Pacific Rim

A

Dr. Allan Castle Director of the Proceeds of Crime and Corruption project at the International Centre for Criminal Law Reform and Criminal justice Policy, is on assignment from his post as Assistant D irector of the Institute of International Relations at UBC.

22

s a response to the growth of organized criminal activities in the Pacific Rim, Vancouver's International Centre for Criminal Law Reform and Criminal Justice Policy (ICCLR) is developing a multiyear project to address the problem of moneylaundering in the region, and of the corrupt practices which facilitate this activity.

For Canada, and for British Columbia in particular, the growing links between North America and Asia signal a new era of opportunity-one of seemingly limitless potential. The gradual liberalization of Asian societies, booming regional economies, and new communications technologies have shrunk the Pacific and made it the most vibrant region in the global economy.

Unfortunately, these same "globalizing" developments have provided similar ad vantages to those operating outside the law. In particular, organized crime has seized the initiative with activities extending far beyond the well-known phenomenon of drug-trafficking to include the large-scale theft and smuggling of automobiles, sex tourism, banking and securities fraud, the illegal trade in armaments, and the smuggling of illegal migrants. The less tangible crime of corruption also continues unabated, greatly restricting the capacity of states to combat these activities.

One common thread which binds these criminal activities is the necessity of reintroducing illegally derived funds into the global economy. Accordingly, the United Nations, through the "Naples Declaration" and other statements and resolutions on organized transnational crime, has repeatedly stressed the need to augment enforcement and prosecution strategies with measures to hinder the laundering of the proceeds of crime.

In response, as one of thirteen institutes and centres worldwide formally affiliated with the UN Commission on Crime Prevention and Criminal Justice, and in cooperation with UBC' s Institute of International Relations, ICCLR is developing within its work on organized crime a project on Money Laundering and Associated Corrupt Practices in the Pacific Rim: Practical Measures. The focus will be on suggesting realistic,

regionally-specific measures to expedite the implementation of UN standards and norms on money-laundering in the region. The project will also examine corrupt practices in government and the private sector which facilitate the laundering of illicit funds.

The project has four concrete goals. First, this summer ICCLR plans to commence the compilation of a database of regional antilaundering legislative measures, successful practices, existing bilateral and multilateral instruments, and relevant research and data, in cooperation with other regional UN Program Network institutes and other organizations.

Second, the International Centre proposes to organize a regional workshop involving legal, policing, professional, and academic experts, as well as UN and governmental representatives, to be held in 1999. ICCLR hopes to have the support of other UN Program Network institutes in running sub-regional preparatory meetings, and earlier this month held productive discussions with representatives of a number of them.

Third, from the workshop and from ongoing research, ICCLR will produce a compendium of recommendations and a series of regular background materials concerning practical measures for the implementation of UN standards and norms on money-laundering within the context of the Pacific Rim. These materials will be made broadly available to a national, regional, and international audience.

Fourth, the recommendations, information and expertise developed as a result of these activities will guide the International Centre in developing bilateral programs of technical assistance and advisory services for requesting states.Activities of such a program may include training programs for key officials, information or persmmel exchanges, and comparative studies to assist states in formulating joint strategies to prevent and control the trans-national flow of the proceeds of crime.

The International Centre welcomes inquiries from interested groups or individuals regarding the content, development and support for the project. If you would like more information, â&#x20AC;˘ please contact us at (604) 822-9875.

BarTalk Vol. 9 No.3

Consider wisely how to share the profits in your firm Choose what meets your needs from a variety of profit-sharing models

N

othing so divides partnerships, friendships and relationships as the issue of sharing profits, except for perhaps, not having any profits in David J. Bilinsky the first place. Law firms, alas, are no different Co-Chair, National CBA from other businesses with multiple owners.

Law Practice Management Given that the recent tax season has so focused Section our attention on matters financial, this appears to be a good time to examine the issue of "Money, it's a crime. partnership Share it fairly but don't take a slice of my pie. compensation Money, so they say formulas.

Is the root of all evil today."

There are four Written by Roger Waters, recorded by Pink Floyd. flavours of law firm compensation formulas in common use today. They are called the Subjective (Rough Justice) System, the Lockstep or equal sharing System, the Objective (Performance) System and Mixed Systems. Each system has its own effect(s) on the behaviour and motivation of the persons within its umbrella . However, one point is clearwhatever the system, the persons caught thereunder undoubtedly modify their behaviour to maximize their personal return therein. This can only be expected. Problems arise when personal interests conflict with a firm's best interests.

Accordingly,letus examine the four principal David J. Billnsky is a partner at Lakes compensation systems and their expected Stralth & Bilinsky and intended and unintended consequences ... a principal of Integral Management Inc. He can be reached on the internet at integral@dlrect. ca.

THE SUBJECTIVE (ROUGH JUSTICE) SYSTEM This system operates by having the partners (either jointly or through a compensation committee) review the performance of each partner and subjectively determine the share of

profits. The exact means taken in deciding the division of profits is not known, as there aren' t any precise logical paths or explicit decision methods u sed. Typically, however, the partners look at the financial statements, the billings/ collections I write-off's of each partner, the files I work genera ted I brought in by each partner, the expertise and seniority of each partner, the time I effort devoted to management issues and the pro-bono I community I marketing efforts of each person, among others.

The strengths of a Rough Justice System are as follows: • It should promote teamwork, as all parties share as a team.

• It should help develop high-paying specialisation.

• It takes into account many variables.

• By rewarding partners with desired attributes, the firm and the partners benefit PROVIDED there is firm-wide feedback regarding those positive attributes.

The principle drawbacks of such a system are as follows: • It requires a high level of trust in the compensation committee.

• It may be political.

• It may diminish the development of new practice areas with low initial payoffs.

THE LOCK-STEP SYSTEM: Under this system, all partners with roughly the same seniority are paid the same amount. Most times, a ceiling is established that once reached, all lawyers therein are treated equally. The strengths of such a system are as follows: • It is understood by everyone.

Continued over

June 1997

23

PRACTICE TALK

Choose a method of sharing profits that works for your firm Continued from page I 7

• It can promote teamwork for clients and for files, as the firm's culture is noncompetitive.

• It is politically neutral.

The principle drawbacks of such a system are: • There is no encouragement of effort, hard work or success.

• It can have a negative effect on morale.

• There is no encouragement of specialisation or entrepreneurship.

weights equalling 1.0. To take a simplistic situation, assume a firm decided that collections are 3 times more important than new file generation, with all other factors excluded. Then the formula and the calculation of profit-sharing would be as shown in the box titled "Sharing by the Numbers" .

Of course, if the partners had chosen to include more or different variables, then the results would be different. The point is that they are rewarded according to their pre-determined criteria, and accordingly, the firm will be driven by those THE OBJECTIVE criteria.

(PERFORMANCE) SYSTEM: The strengths of this system are: The most common example of this system is the • It is understood by all, unless it is unduly Hale & Dorr Formula system, which was complex! promulgated by this Boston firm. In this case, • The firm's goals can be aligned by the such variables mentioned aforesaid in the Rough selection of the variables and their .Justice System are explicitly determined, together weights. with such others as the firm deems desirable, • It should encourage entrepreneurship if and then worked into a mathematical formula. the variables are so aligned.

Afterwards, the division of profits then becomes The principle weaknesses of this system are: a simple application of the formula. To work this • It may reduce team effort and promote system, weights must be assigned between 0.0 gamesmanship for clients and files. and 1.0 to each variable, with the total of the • It may reduce the development of new speciality areas, if aligned for a short-term, profit focus.

• If weights I variables are badly SHARING BY THE NUMBERS chosen, then the firm's focus and THE OBJECTIVE SYSTEM direction will be adversely .75 x (partners collections)+ .25 x (partner file generations)=% of firm's profits affected. total firm collections total firm file generations THE MIXED SYSTEM PARTNERS COLLECTIONS FILE GENERATION The last system is the Mixed System Partner A $30,000 25 This is a catch-all category. In this Partner B $20,000 35 category are systems which attempt Partner C $10,000 15 to combine the strengths of the three PartnerD $40,000 25 systems and alleviate their TOTALS: $100,000 100 drawbacks. Examples are an objective I subjective system, where A: (.75 (30000) + .25 (25)) X 100000 = $28,750.00. the results of a Hale-Dorr formula 100000 100 are used for a certain percentage of B: (.75 (20000) + .25 (35) ) X 100000 = $23,750.00. the profits, with the balance 100000 100 distributed on solely subjective grounds. Here the firm retains some C: (.75 (10000) + .25 (15)) X 100000 = $11,250.00. flexibility to adjust for real or 100000 100 perceived injustices arising from the D: (.75 (40000) + .25 (25)) X 100000 = $36,250.00. strict application of a mathematical 100000 100 formula.

TOTAL: $100,000.00 Whatever the system in use in your firm, examine it carefully to 24

BarTalk Vol. 9 No. 3

make sure that its Pavlovian effect is the one desired when considering the strategic direction of the firm, the long-term viability and continuity of the firm and your firm's culture.

After all, you don't want a dissatisfied someone moving to "Grab that cash with both hands and make a stash."

The author wishes to acknowledge and thank Steven Campbell, C.A., of the firm of Nelligan, Power of Ottawa, Ontario, and the Canadian Bar Association, for the use of Steve's materials on Compensation and Profit Distribution prepared for the CBA' s Law Office Management Training Session, Shanghai, China, April, 1977. Any errors or omissions are solely the responsibility of the author. +

Dave's Top 10 Internet Sites Anti-Virus programs. There are many out there, but I personally use and rely on McAfee's anti-virus system. To be effective, download the software, and then update the data files (about every 6 weeks or so). If you STILL believe that you can't contract a virus, I recently received a disk of a transcript from a reputable Court Reporter that was infected with the Word Concept virus. Run, don't walk, to: http: I I www.mcafee.com.

2. For those interested in keeping up on the Journal of the Society for Computers and Law in the UK called Computers and Law, the journal is now online at http:/ I www.scl.org.

3. The BRIDGES Web site is the handiwork of some Internet techies from the ABA who have joined with their counterparts from the American Institute of CPAs to launch a series of joint ventures that use very innovative Web site software. The site software permits visitors to edit and . create Web pages without needing to know htrnl. This gives everyone who visits a "hands-on" opportqnity to participate in various projects and programs. Check out the site at: http:/ /www.c2.com:8000/ Please note: this address is just a bit different: there is a colon between com and 8000.

4. Worried about security on the Net? Did you know that every site that you visit on the Net has the ability to track who is visiting them? As well, allegedly there are programs that can trace where YOU have been on the Net (important if you are doing research on an important file!). There is a solution: The Anonymizer is here! This site states that you can surf anonymously thru them! This site strips out information personal to you and allows you to visit sites without leaving a footprint (or cookie, as it is known) behind. http: I I www .anonymizer.com/ open.htrnl 5. What is a cookie, you say? Check out http: I I www.pgp.com/products/PGPcookie.cgiforinforrnationon PGP' s cookie cutter and otherinformationregarding privacy and security on the net. PGP stands for Pretty Good June 1997

Security-Phil Zimmerman has invented a security system for exchanging emails on the net using a public and a private "key" -your public key is freely available in order for people to send you an email and your private key is used to decode the message. By using these two keys your emails are scrambled. Apparently this security system is about as good as it gets currently on the Net. 6. Have a look at what other courts are putting up on the Web. This is a court in Virginia (WISE county-what else?) that is using JAVA on their very interesting website: http: I I www.courtbar.org 7. Interested in issues related to or examples of domain names that are alleged to infringe with trademarks? Law Journal Extra has information in it's Internet Law site. Law Journal Extra is at http:/ /www.ljx.com . They have a couple of articles discussing the issue, as well as copies of the complaints in the Ticketrnaster v.Microsoft case, and theW ashington Post v. Total News case. These are the only two cases that I have seen claiming trademark infringement.

There are also a few articles in the Trademark Law sectionunder practice areas.

8. The free weekly Supreme Court international Bulletin (SCiB) will now publish decisions of the Bundesverfassungsgericht (the German Federal Constitutional Court). Summaries will be in both German and English with links to full-text judgments in German.

SCiB currently includes decisions of the US Supreme Court, the Canadian Supreme Court, the UK House of Lords, the Australian High Court and the South African Constitutional Court in one Bulletin. Subscribers may choose between HTML and text versions. Archive: http: I I www.farislaw .com/ archive.html Web Subscription: http:/ /www.farislaw.com/ 9. PC Week is online (are you surprized?) and in this issue is an article on "push" technologies on the web: http: I I www8 .zdnet.com/ pcweek/ news I 0512 I 12deliv.htrnl 10.All of these Top 10 site references are archived at: http:/ / www.lsandb.com/ top10feb97.htrn These links are maintained as hypertext links, which may make finding them somewhat easier than typing in cryptic URL references. Unfortunately, archive links on the Net may disappear, move around or expire, as sites are updated, changes, moved to different servers, etc. However, I will endeavour to keep these references as up to date as possible.

Happy surfing until we meet again! +

25

Letters to the Editor It's your chance to REALLY have the final say!

To the Editor: Re:Thanks I have just read the latest edition of Section Talk and I want to commend the CBA and theBarTalk Editorial Board, which is obviously up and running with a first-rate publication.

I also want to personally commend Emily Reid, Q.C., and the Executive of the CBA for the substantial commitment in terms of time and money in support of the Coalition Against No Fault's fight against the dismantling of the tort system in this province.

The public town hall meetings held throughout the province have been a great success.

I wish personally to tell you that the hard work and commitment displayed by the Executive of the BC Branch of the CBA, with Emily as president, have greatly enhanced the morale of both the TLABC and the members of the Coalition Against No Fault. We are proud of the strong stand you have taken on this issue and I know that my views are shared by a great number of our colleagues.

Keep up the good work.

Yours very truly, Kenneth A. Price Editor, The Verdict Trial Lawyers Association of British Columbia To the Editor: Re: Unprosecuted Appeals 1. I was recently in front of Mr. Justice Hinds resurrecting an appeal which had fallen onto the inactive list. With the assistance of opposing counsel, the appeal was reactivated and I was saved from a negligence suit.

2. In the course of argument, Justice Hinds said that he wanted the "local bar" informed that the reactivating of an appeal might well not occur if the appeal is on the inactive list for more than 180 days [see Court of Appeal Act, section 25 (4)] . Justice Hinds asked that I advise the profession of the recent (February 19, 1997) decision of Mr. Justice Esson in Wilson v. Wilson, Vancouver Registry CA017885, wherein Justice Esson refused to reinstate an appeal once it had passed 180 days on the inactive list.

26

3. I think that the message that Justice Hinds was attempting to send was that once an appeal hits the inactive list, counsel should move promptly to reactivate the appeal and that once the 180 day limit has passed, the appeal may well not be reactivated because the delay has been inordinate. Our days of grace are over.

4. I have copies of the Reasons for those counsel who are so retrograde as to not be on the Internet or subscribe to Quicklaw.

Thank you.

Yours very truly, Robert M. Moffat To the Editor: Re:DOS Thank you for the article which appeared in the April, 1997, BarTalk on page 20, regarding "DOS is best." This particular point of view confirms my personal concerns that there is inconclusive evidence that Windows technology will generate cost savings proportionate to the direct cost to lawyers arising from acquisition of the technology and its implementation.

For example, last year we were advised by our computer consultants that replacement of our entire computer system with Windows would result in about five per cent savings in efficiency after all installation and staff training was complete.

Affordability of the practice of law has been a much debated topic in our ongoing efforts to make this profession more inclusive and more compatible with a reasonable lifestyle. In order to achieve both of these goals, it has been stressed over and over again that the burdens of practice, including financial ones, cannot be too onerous or the practice of law will simply exclude those less able to practice long hours on a high-volume basis. As a result, it appears to me that it is important that the profession take a stand to advocate that computerized legal materials continue to be available in the DOS format.

The article states that currently DOS is still the primary software used in the majority of law offices. Therefore, I am most concerned about the recent news that the new version of the statutes would only be available in the Windows format, as well as several similar notices I have

BarTalk Vol. 9 No. 3

received in the last few months with respect to of25yearsand,duringthose25years,Ihavedone other software. considerable legal services work, including being In a telephone callto Les Johnson, ofthe Queens area director for approximately six years.

Printer, I questioned the decision not to produce a I have now come to the point where I find it DOS version of the statutes. He cited the reason most difficult to operate my office and continue that last year's sales were "pitiful" in DOS, being to accept Legal Services Society referrals for either approximately six DOS sales to every 1,000 criminal or family law, inasmuch as the time Windows sales. I am not certain if this is the result spent much exceeds the tariff. I am a sole of widespread usage in government agencies, as practitioner and, although I operate in a small he advised that a great many of the sales had been community in the interior of British Columbia, I haveneverbeensuccessfulinhavingmyoverhead to the Ministry of the Attorney General.

I asked Mr. Johnson if it might be possible that less than 50 per cent of my gross and my usualfee he was missing most of the potential DOS sales as in connection with legal services is $150 an hour. the cost of the electronic version is quite high and I simply cannot, in the face of the present cuts, the cost of the updates even more so. I suggested continue to operate at the reduced rates, wherein thatinordertomarkettheDOSversioneffectively, I am to be paid $72 an hour for a family law there had to be a commitment that the cost of the matter, andsustainafurtherreductionforcrirninal updates would not exceed that · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · matters on a block-payment oftheupdatestothehardcopies On Legal Aid: basis. andthattherebeacomrnitment "I have now come to the Idonotspeakfortheother to maintain the DOS format point where I find it most lawyers in this particular itself. Mr. Johnson was quite difficult to operate my office community,butitiswithsome interested in these suggestions and continue to accept Legal regret that I must advise that I and was planning to pass them Services Society referrals for am going to have to reduce the on to his colleagues in the either criminal or family law, numberofreferralsthatlwould marketing department. inasmuch as the time spent havetaken,asicannotcontinue I urge the CBA, BC Branch, much exceeds the tariff.... 1 to reach into my own limited totakeastand with the Queens simply cannot, in the face of resources in order to fund the Printer and other legal the present cuts, continue to Legal Services Society. It is my publishers to ensure that the operate at the reduced firm belief that over the years, DOS format continues in rates ....." the solicitors and lawyers who production for some years to ......... . ............... . ..... . . have done work for Legal come, with this policy possibly to be reviewed in Services Society have made a vast contribution, the year 2000. not only in time but also in money, towards this I would appreciate the thoughts of the organization. But, quite frankly, it has to stop.

It would seem to me thatthe most appropriate Executive on this point. Thank you for your consideration and assistance. approach would be that the mandate for the Yours Truly, Legal Services Society for services to be presented Kathryn A. Berge, Q.C. to the public must be altered, or the funding must be increased to meet the amended mandate. I To the Editor: simply cannot continue with the present mandate Re: "LSS slashes budget once again" (Bm-Fax, and the lack of funding, with each year there April10) being a decrease for what is laughingly called a The special bulletin referred to above has been in "holdback." I am sure we will never see any more my office for some little time andi have struggled of these funds and it might be more appropriate with whether or not I should reply in person or for Legal Services Society to simply admit that through the Salmon Arm Bar Association. We they have cut the basic rates. have had a meeting of the Salmon Arm Bar I could go on and on in connection with this Association and I understand a letter will be matter but, as a matter of a lawyer practising in a coming from the Bar in connection with our views community of slightly under 15,000 people, it is going to have a dramatic effect upon those who re the Legal Services Society present position.

I wish to put in my own personal view in rely upon Legal Services Society for legal services. connection with the matter, and just as brief background, I have been in practice for in excess Continued over j une 1997

27

Letters to the Editor Continued from page 2 I

It is my belief that the net result is that the files

that are to be referred will go out of town, which will be a further difficulty for those of limited means; but I am simply not prepared at this point to continue to supply to the Legal Services Society the services I have provide in the past, since it is providing me with no income and I am paying what is purported to be a governmentfunded services. I thank you for your time in reading this letter.

Yours Very Truly, H . R. Bartlett

in the Advocate and other learned law journals.

Please send your donations to "Connell Lightbody (R.H. Guile Fund)" to my attention at: P.O. Box 11161, Royal Centre, 1900-1055 W. Georgia St. Vancouver, BC, V6E 4J2. You will receive a tax receipt directly from the currentlybeing-established Law Courts Inn Foundation.

Yours Very Truly, Walley P. Lightbody, Q.C.

To the Editor: Re: Flood Assistance It has recently come to my attention that a number of CBA members across the country have expressed a strong desire to donate to a fund for our members in Manitoba who have lost their homes in the flood.

To the Editor: I can tell you that Re: Robert H . Guile, at least a dozen of On the Manitoba Floods Q.C. Memorial Award our members have for Humour and the "I can tell you that at least a dozen of our suffered damage Law members have suffered damage and in and in many cases, The late Robert H. many cases, entire homes and contents entire homes and Guile, Q.C. was not have been ruined or substantially damcontents have been only an outstanding aged. Flood insurance is not available in barristerbutpossessed ruined or of a marvellous sense the Red River Valley. substantia 11 y ofhumourandsuperb · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · · damaged. Flood flair for the written word. It is fitting, therefore, insurance is not available in the Red River Valley. that there be some lasting recognition of these I am not writing to ask you to take an active talents. role in soliciting funds from your members.

Because our late confrere was a graduate of However; I can advise, for those who are the UBC Faculty of Law it is also fitting that the interested, that we have set up a special trust award should be bestowed upon a worthy UBC fund for CBA members in our province who law student candidate. We intend to establish a have suffered loss of their homes and property. fund to finance that award. Each candidate will Could you pass along to anyone interested in submit an original literary work of any your Bran<;:h that cheques can be sent to the description but somehow related to the law, not Manitoba Bar Association Office, 219 Kennedy to exceed 2,500 words. Bob would have said St., Winnipeg, MB R3C 158, payable to the shorter was better.

Manitoba Bar Association-Flood Relief. Once As you know, Bob was a Past Treasurer of the the extent of the damage is known, we will be Law Society. More importantly, he was also a paying the proceeds of the fund out to our founder and Past President ofS.M.A.L.L. (Societe members.

Midgette/ Alliance of Little Lawyers). The Thereare,ofcourse,avarietyofothergroups physical height of the candidate will, therefore, who are collecting funds for flood victims be a consideration. generally, including the Canadian Red Cross, Major consideration will be given for the C::BC Morningside, etc. If your members wish to content of the work. Bob was an actor, poet, a give to those organizations, they are certainly humorist, an adventurer and a lover of the rule welcome to do so. If you require any further of law. Therefore, all of these elements will be information, please don't hesitate to give me a considered in the final selection. In short, the call.

Yours Truly, literary work should reflect the "Spirit of Guile".

Garth H. Smorang, Q. C. The winning candidate will be called upon to read his or her work at the Law Courts Inn at an President, Manitoba Bar Association. appropriate time. We expect it will be published 28

BarTalk Vol. 9 No. 3

ACTS IN FORCE

BC Benefits (Appeals) Act, S.B .C. 1996, c.4, (R.S.B.C. 1996, c.25, s.1 of the Supplement), provides an appeal system for appeals made under the BC Benefits (Child Care) Act, BC Benefits (Youth Works) Act and Disabilihj Benefits Program Act.

"-

0

w

..J

~

a:

~ :J

" Ann McLean

paragraphs (a), (c) and (d) of the definition of "designated Act" in section I of the Act in force March 31, 1997; amendments to the Revised Statutes in force April21, 1997

This feature is a continuing part of the Branch Legislation and Law Reform program. If you 'd like to become involved with this program , contact Ann McLean at 250-598-2860 or by e-mail at amclean@bccba. erg.

You will see a reference in some cases to the number of the Bill when it was introduced in the House. This

BC Benefits (Child Care) Act, S.B.C. 1996, c.5, (R.S.B.C. 1996, c.26, Supplement) establishes the Provincial Child Care Council to make recom~endations to the minister about child care, proVI~es for grants to organizations that provide child care and for child care subsidies to eligible low income families to enable training or employment and allows the minister to enter into information-sharing agreements with other governments and agencies for the purpose of administering tax and social benefit programs.

in force March 31, 1997; Supplement to the Revised Act in force April21, 1997

number may be different from the chapter number of the new Act which is quoted after the title of the Act and which is the proper citation for the Act. The Bill Number has been given to you to make it easier for you to note up the Bills you may have in your library. Every effort is made to ensure the accuracy of the information provided to you in this article but the information should not be relied upon ..

Lawyers should refer to the specific legislative or regulatory provision.

BC Benefits (IncomeAssistance)Act, S.B.C.1996, c.6, (R.S.B.C. 1996, c.27, sections 1 - 5 of the Supplement) authorizes the payment of income assistance and benefits, hardship assistance and funding for training programs as well as financial assistance for programs or services which p~omote the purposes of the Act. The Act provides that where one member of a couple is 1924 years old and the other is 25 or over, the yo~ger member may be referred to an employability program under the BC Benefits (Youth Works) Act. Consequential amendments are made to theCommunihJ Care Facility Act,(R.S.B.C. 1996, c.60, s.1 an~ 5 of the Supplement), Criminal Injury Compensatwn Act, (R.S.B.C. 1996, c.85, s.1 of the Supplement), Debtor Assistance Act, Evidence Act, (R.S.B.C. 1996, c.124; s.2 of the Supplement) and Hospital Act, (R.S.B.C. 1996, c.200, s.9(b) of the Supplement) .

graph (a) of the definition of"recipient" in section14, sections 31-34, the portion of section 35 that enacts section 68(l)(d) - (j) of the Evidence Act and section 47 of the Act, in force March 31, 1997; amendments to the Revised Statutes in force April21, 1997 BC Benefits (Youth Works)Act, S.B.C. 1996, c.7, (R.S.B.C.1996, c.28, Supplement) establishes the Youth Works Program, whereby applicable people aged 19 to 24 will not receive welfare, but will receive support and shelter allowances and be~~fits provided they participate in employability programs or meet other requirements.

in force March 31, 1997; Supplement to the Revised Act in force Apri/21, 1997 Budget Measures Implementation Act, 1996, S.B.C. 1996, c.9, amends the Motor Fuel Tax Act, S.B.C. 1985, c.76, (R.S.B.C. 1996, c.317, s. 2- 6 of the Supplement) reducing the tax payable on gasoline and diesel fuel and increasing the tax rate for the additional tax for "transportation infrastructure construction".

sections 5 â&#x20AC;˘ 8 of the Act in force April!, 1997; amendments to the Revised Statutes in force Apri/21, 1997 Disabilitt; Benefits Program Act, S.B.C. 1996, c.lO, (R.S.B.C. 1996, c.97, Supplement) provides for the payment of disability allowances and benefits to persons with disabilities. The minister is authorized to enter into information-sharing agreements with other governments and agencies for the purpose of administering tax, immigration and social benefit programs. Consequential amendments are made to the Home Owner Grant Act, (R.S.B.C.1996, c.194, s.1- 5 and 7 of the Supplement), Land Tax Deferment Act, (R.S.B.C. 1996, c.249, s.1 of the Supplement), Motor Fuel Tax Act, (R.S.B.C. 1996, c.317, s.l of the Supplement) and Social Service Tax Act, (R.S.B.C. 1996, c.431, s.1 of the Supplement).

in force March 31, 1997; amendments to the Revised Statutes in force Apri/21, 1997

sections 4(b) and (c), 7, 9(l)(e), ll(l)(c),paraContinued over June 1997

29

LEGISLATIVE UPDATE

Legislative Update Continued from page 2 I

Job ProtectionAmendmentAct, 1997, S.B.C.1997, c.2, (Bi116), amends the Job Protection Act, S.B.C. 1991, c.4, (R.S.B.C. 1996, c.240), extending the date for repeal of the Act to any time on or after April 12, 1999 as set by regulation and makes consequential amendments to the Forest Act, S.B.C. 1979, c.140 (R.S.B.C. 1996, c.157). in force Aprilll, I997 Misce llaneous Statutes Amendment Act, 1996, S.B.C.1996, c.13, amends theHospitalAct, R.S.B.C. 1979, c.176, (R.S.B .C. 1996, c.200, sections 1, 4-7

Reports Available The Legislation and Law Reform Committee has received a copy of the following reports from the B.C. government. Copies may be obtained from the source noted.

路1996 ANNUAL REPORT OFTHE CHILD, YOUTH AND FAMILY ADVOCATE Source: Office of the Child, Youth and Family Advocate- Vancouver 775-3203; 1-800-476-3933; Internet: http: I I advokids.org PAMPHLET AND WALLET-CARD PUBLIC INFORMATION ON CRIMINAL HARASSMENT (STALKING) Source: Ministry of Women's Equality, (Fax: (250) 953-4529; Internet: http: I I www.weq.gov.bc.ca) or Ministry of Attorney General, (Fax: (250) 356-9037) THE BC FISHERIES STRATEGY DISCUSSION PAPER DEADLINE FOR COMMENTS JUNE 30, 1997

Source: The BC Fisheries Secretariat; Phone (250) 387-3190; Fax: (250) 387-3291; Local Government Agent offices

1996 ANNUAL REPORT OFTHE OMBUDSMAN Source: Office of the Ombudsman, Victoria 250-387-5855; 1-800-567-3247; Internet: http: I I www.ombud.gov.bc.ca.

30

and 9 (a), (d) and (e) of the Supplement) providing a definition of "practitioner" that includes medical practitioners, dentists and registered members of prescribed health professions, making consequential amendments throughout the Act and replacing references to "medical appeal boards" with "hospital appeal boards" to whom practitioners may appeal certain board of management decisions and makes consequential and housekeeping amendments to the Freedom of Information and Protection of Privacy Act (R.S.B.C. 1996, c.165, s.1(h) of the Supplement) and the Hospital Insurance Act (R.S.B.C. 1996, c.204, s.7 of the Supplement). sections 8, 9 and II - I6 of the Miscellaneous Stahttes Amendment Act, I996 in force April IS, I997; amendments to the Revised Statutes in force April2I, I997 MotorVehicleAct, R.S.B.C.1996, c.318, is amended, providing for a 90-day administrative driving prohibition for any driver who fails a blood test or refuses to provide a breath sample, providing for vehicle impoundment for prohibited and unlicensed drivers for 30 days on the first offence and 60 days for subsequent offences within two years, and providing for the transfer of many of the functions of the Motor Vehicle Branch to ICBC. section 22(a), 23- 28, 3I - 43, section 30, except the portion that enacts s.I04.2(I)(a) and (b), (2), (3) and S(a) and (b) of the Motor Vehicle Act, section 46(b) except the portion that enacts s.2I0(3.I)U) of the Motor Vehicle Act, and section 46(c) of the Supplement to the Act in force May 5, I997 Statute Revision Act, Revised Statutes of British Columbia, 1996. in force April21, I997 REGULATIONS TO NOTE

BC Benefits (Child Care) Act, B.C. Reg. 74197, the Child Care Regulation is made, providing for who qualifies for a child care subsidy, amount of subsidy, changes of circumstance, reconsideration of decisions and transition provisions. effective March 3I, I997 BC Benefits (Income Assistance) Act, B.C. Reg. 75 I 97, the Income Assistance Regulation is made and is amended by B.C. Reg. 76197. B.C. Reg.

BarTalk Vol. 9 No. 3

LEGISLATIVE UPDATE

272196, the BC Benefits (Income Assistance) Regulations is repealed. The new regulation provides for who qualifies and how much is provided, employment related programs and 路 benefits, other benefits, hardship assistance, reconsideration and appeals and general transition provisions. B.C. Reg. 115197, the Forms Regulation is made and B.C. Reg. 273196, the Application for Benefits Regulation is repealed.

B.C. Reg. 75/97 effective March 31, 1997, s.7 of B.C. Reg. 76/97 (repayment of security deposits) effective August 1, 1997, balance of B.C. Reg. 761 97 effective March 31, 1997; B.C. Reg. 115/97 effective April I, 1997 BCBenefits (Youth Works)Act, B.C. Reg. 77197, the Youth Works Regulation is made and is amended by B.C. Reg. 78197. The regulation provides for who qualifies and how much is provided, employability programs and benefits, other benefits, reconsideration and appeals and general transition provisions. B.C. Reg. 116 I 97, the Forms Regulation is made.

B.C. Reg. 77197 effective March 31, 1997, s.6 of B.C. Reg. 78/97 (repayment of security deposits) effective August 1, 1997, balance of B.C. Reg. 78/ 97 effective March 31, 1997; B.C. Reg. 116/97 effective April I, 1997 Consumer Protection Act, B.C. Reg. 147197, the Travel Club Regulation is made, adding travel clubs to the definition of "contract for future services" in s.1 of the Act. effective April17, 1997 Court Rules Act, B.C. Reg. 261193, the Small Claims Rules are amended (see separate story this issue on page 16.)

B.C. Reg. 148/97 effective June 15, 1997 Court Rules Act, B.C. Reg. 221 I 90, the Supreme Court Rules are amended, inter alia as to (a) Rule 4, providing that certain documents must contain the address for delivery of the party by whom or on whose behalf a document is filed and consolidating rules relating to the address for delivery in other rules, (b) Rule 11, providing for service by delivery, (c) Rule 12, providing rules for substituted service at a residence or by mail without an order, (d) Rule 14, providing for entering an june 1997

appearance to an appeal and Rule 49, providing that a person who intends to oppose an appeal must enter an appearance, (e) Rule 39, deleting the provisions relating to the case management program and providing that a trial certificate may not be filed more than 30 days before the scheduled trial date, (f) Rule 40, providing that only a current director, officer, partner, employee or agent may be called or subpoenaed and allowing the court to make an order as to costs or any other order it thinks just if an adverse party refuses to comply, (g) Rule 53, providing for reference of a matter by a master to a judge and reference of a matter by the registrar to a judge or master, (h) Rule 57, allowing the master to give directions during an assessment of costs by the registrar and adding a provision for assessment of sheriff's fees, (i) Rule 60, providing that a restraining order under s.37 or 38 of the Family Relations Act must be in Form 119B and adding Form 119B, (j) Rule 64, providing that in a proceeding under the Child, Family and Community Service Act, a registry file may only be searched by a party, a party's lawyer or a person authorized by them, and making consequential amendments to many Forms.

B.C. Reg. 165197 effective July 1, 1997 Disabilittj Benefits Program Act, B.C. Reg. 79 I 97, the Disability Benefits Program Regulation is made and is amended by B.C. Reg. 80197. The regulation provides for who qualifies and how much is provided, benefits, reconsideration and appeals and general transition provisions. B.C. Reg. 117197, the Forms Regulation is made.

B.C. Reg. 79/97 effective March 31, 1997, s.2 of B.C. Reg. 80/97 (repayment of security deposits) effective August 1, 1997, balance of B.C. Reg. 801 97 effective March 31, 1997; B.C. Reg. 117/97 effective April I, 1997 Land (Spouse Protection) Act, B.C. Reg. 85197, the Forms Regulation is made, consequential to

Continued over

31

LEGISLATIVE UPDATE

SarTa/k Is published by the British Columbia Branch of the Canadian Bar Association, lOth Floor 845 Camble Street Vancouver, BC V6B 5Tl TEL: (604) 687-3404 TOLL FREE: In BC, outside the Lower Mainland: 1-888-687-3404 FAX: (604) 669-9601 • BarTa/k Editor: RY GLOVER, Director of Communications 687-3404 rglover@bccba.org • Legislation & Law Reform Officer: ANN McLEAN (Victoria) (250) 598-2860 amclean@bccba.org • Section Talk Editor: SHELLEY BENTLEY, L.L.B. CIBC TRUST CORP. 665-1784 • Practice Talk Editor: DAVID BIUNSKY, Lakes, Straith & Billnsky 984-3646 • Editorial Board MARGARET OSTROWSKI, Chair jOE WOOD GREGORY STEELE BRUCE WOOLLEY

© Copyright the British

Columbia Branch of the Canadian Bar Association-1997.

This publication is intended for information purposes only and the information contained herein should not be applied to specific fact circumstances without the advice of counsel.

The BC Branch of the Canadian Bar Association represents over 8,600 lawyers within British Columbia and is dedicated to improve and promote access to justice, to review legislation, initiate law reform measures and advance and improve the administration of justice.

32

Legislative Update Continued from page 2 I

the removal of the forms from the Act in the Revised Statutes. effective April21, 1997 Land Title Act, B.C. Reg. 334/79, the Land Title Act Regulation is amended, increasing fees for certain services.

B.C. Reg. 150/97 effective May 7, 1997 Motor Vehicle Act, B.C. Reg. 26/58, the Motor

Vehicle Act Regulations are amended adding Division 43, "Administrative Driving Prohibition and Vehicle Impoundment Programs".

B.C. Reg. 160/97 effective May 5, 1997 NEW BILLS TO NOTE

The foll owing bill received first reading on May 1, 1997, but at the time ofpreparing this summary (May 9, 1997), the bill had not progressed to second reading.

Police Amendment Act, 1997, (Bill16), amends the Police Act, R.S.B.C. 1996, c.367, establishing a

new process for public complaints against mu-

nicipal police forces, replacing the BC Police Commission with a police complaint commissioner to be appointed by and reporting to the legislature. The bill establishes a new structure to oversee designated policing units and designated law enforcement-units, aboriginal policing units and security guards. It transfers police oversight duties and other duties currently carried out by the BC Police Commission, except those dealing with complaints; to the Director of Police Services, Ministry of Attorney General. It confirms responsibility for reciprocal police assistance, but requires that the policing agency that requests assistance will be responsible for the costs of the assistance. The bill authorizes regulations setting standards for the use of force by municipal police. Consequential amendments are made to the Commercial Transport Act, Correction Act, Criminal Records Review Act, Fire Services Act, Freedom oflnformation and Protection of Privacy Act, Health Act, Highway Act, Horse Racing Tax Act, Justice Administration Act, Land Act, Livestock Public Sale Act, Mental Health Act, Motor Carrier Act, Motor Vehicle Act, Municipal Act, Offence Act, Prevention of Cruelty to Animals Act, Private Investigators and Securihj Agencies Act, Vancouver Charter, Victims of Crime Act and Wildlife Act. The act will be brought into force by regulation. +

Law Day-all the usual suspects showed up Taking care ofthe CrimeStoppers booth were (from left): Cst. Linda Malcolm, Mr. Harry Caine and Sgt. David Baker.

... including some members of the Judiciary Mr. Justice Grant Burnyeat (left) and Chief Judge Robert Metzger of the Provincial Court take a break during the festivities.

Kids had a wonderful chance to indulge in some motorcycle fantasies , thanks to the Vancouver Police Department. Law Day was held in Vancouver on Apri l 13 .

BarTalk Vol. 9 No. 3